Citation NR: 9804501
Decision Date: 02/13/98 Archive Date: 02/17/98
DOCKET NO. 97-20 380 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to an increased (compensable) rating for
bicipital tendinitis of the
left shoulder.
2. Entitlement to service connection for obstructive airway
diseases secondary to asbestos exposure.
3. Entitlement to service connection for a low back
disorder, described as low back pain.
4. Entitlement to service connection for a chest and arm
disorder, described as pain in the chest and arm.
REPRESENTATION
Appellant represented by: Disabled American Veteran
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Stanley Grabia, Associate Counsel
INTRODUCTION
The veteran had active service from June 1987 to January
1996. This appeal is before the Board of Veterans' Appeals
(the Board) as a result of a rating decision of the
Department of Veterans Affairs (VA) regional office (RO)
Atlanta, Georgia.
A video hearing was held in September 1997, before the Board
Member rendering this decision, sitting in Washington, DC,
and the appellant and his representative sitting in Atlanta,
Georgia. The Board member has been designated by the
Chairman to conduct the hearing pursuant to 38 U.S.C.A. §
7102(b) (West 1991 & Supp. 1997).
Regarding the issue of chest and arm pain, it is noted that
the appellant is service connected for bicipital tendinitis
of the left shoulder. To the extent the complaints of arm,
shoulder, and chest pain are related to that disorder, they
are considered in the evaluation assigned for that disorder.
Thus, the service connection claim is for pain other that the
pain associated with the service connected disorder, although
for the sake of convenience herein, it is described just as
shoulder and arm pain.
The issue of service connection for a low back disorder will
be considered within the REMAND section of this document.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his service-connected bicipital
tendonitis, left shoulder warrants a compensable disability
evaluation. He contends in essence, that he has occasional
tightness, soreness, and a piercing pain in his left
shoulder. He also contends that he suffers from pain in the
chest and arm incurred in service. He further contends that
he suffers from a chronic obstructive airway diseases
secondary to asbestos exposure in service. He is seeking
service connection for these disorders.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the preponderance of the evidence is against the veteran's
claim for an increased rating for bicipital tendonitis, left
shoulder. It is further the decision of the Board that the
claims for service connection for obstructive airway diseases
secondary to asbestos exposure, and pain in the chest and arm
are not well grounded.
FINDINGS OF FACT
1. All relevant available evidence necessary for an
equitable disposition of the veteran's appeal has been
obtained by the RO.
2. The veteran incurred bicipital tendonitis, left shoulder
in service. It is manifested principally by complaints of
the shoulder occasionally getting, “real tight,” occasional
soreness, and piercing pain in his left shoulder.
3. The veteran's service connected bicipital tendonitis,
left shoulder disability is objectively asymptomatic. VA
examination in October 1996 did not exhibit any limitation of
motion of the left shoulder, or pain on motion. There was
however slight tenderness to palpation of the bicipital
tendon.
4. There are no extraordinary factors resulting from the
bicipital tendonitis, left shoulder productive of an unusual
disability picture such as to render application of the
regular scheduler provisions impractical.
5. The service medical records indicate complaints of
various pains of the arm and chest. These were diagnosed as
muscle strain, or spasms and treated with Naprosyn.
6. The veteran was tested in service for an obstructive
airway disease secondary to asbestos exposure. Mild
obstructive airways disease was suggested; findings were
negative for asbestos residuals; on post-service VA
examination normal findings were recorded.
7. The post service clinical records are negative for any
treatment for any obstructive airway disease, and/or pain in
the chest and arm.
8. The most recent VA examination in October 1996 was
negative for any obstructive airway diseases, and/or, pain in
the chest and arm. The examiners noted that the veteran’s
examination was essentially normal.
9. There is no evidence submitted that the veteran incurred
an obstructive airway diseases secondary to asbestos
exposure, and, chest and arm disorder during service, or that
he currently had such pathology that was related to any
occurrence or event during service.
10. Appellant has not submitted plausible evidence
sufficient to justify a belief by a fair and impartial
individual that the claims for service connection decided
herein are well grounded, that is, capable of substantiation.
CONCLUSIONS OF LAW
1. The criteria for a compensable rating for bicipital
tendonitis, left shoulder have not been met. 38 U.S.C.A. §§
1155, 5107 (West 1991 & Supp. 1997); 38 C.F.R. §§ 3.102,
3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DC) 50024-
5003, 5200, 5201, 5202, 5203 (1997).
2. The veteran has not submitted evidence of well grounded
claims for service connection for an obstructive airway
disease secondary to asbestos exposure, and, pain in the
chest and arm. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Increased rating, bicipital tendonitis
A person who submits a claim for benefits has the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded. 38
U.S.C.A. § 5107. After reviewing the evidence on file, the
Board concludes that the veteran's claim for an increased
rating is well grounded within the meaning of 38 U.S.C.A. §
5107(a). That is, the claim presented is not inherently
implausible. Furthermore, the Board concludes that all facts
pertinent to the claim have been developed and that as such,
there is no further duty to assist in developing the claim as
contemplated by 38 U.S.C.A. § 5107(a).
In adjudicating a well-grounded claim, the Board determines
whether (1) the weight of the evidence supports the claim, or
(2) the weight of the "positive" evidence in favor of the
claim is in relative balance with the weight of the
"negative" evidence against the claim: The appellant
prevails in either event. However, if the weight of the
evidence is against the appellant's claim, the claim must be
denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert
v. Derwinski, 1 Vet. App. 49 (1990).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability more closely approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. §§ 3.102, 4.3, 4.7. When, after
careful consideration of all procurable and assembled data, a
reasonable doubt arises regarding the degree of disability,
such doubt will be resolved in favor of the veteran. 38
C.F.R. § 4.3.
In the evaluation of service-connected disabilities the
entire recorded history, including medical and industrial
history, is considered so that a report of a rating
examination, and the evidence as a whole, may yield a current
rating which accurately reflects all elements of disability,
including the effects on ordinary activity. 38 C.F.R.
§§ 4.1, 4.2, 4.10, 4.41. Where, as in this case, entitlement
to compensation has already been established and an increase
in the disability rating is at issue, the present level of
disability is of primary concern. Francisco v. Brown, 7 Vet.
App. 55, 58 (1994). The most recent evidence of the present
level of disability is the VA examination conducted in
October 1996.
Service medical records reflect that the veteran complained
of left shoulder, arm, and chest pains in service, due to a
lifting accident. He was treated with Motrin, and two weeks
of light duty.
He was afforded a VA examination in October 1996. He stated
that he injured his left shoulder and left anterior chest
region in 1992. He claimed that from time to time the
shoulder and musculature of the left upper chest area
becomes, “real tight.”
A VA examination of the musculoskeletal system revealed no
joint or bone deformities, no soft tissue swelling or
increased heat around the joints of the limbs. There was no
malalignment of the axial skeleton, and no sulcus sign of the
left shoulder. Shoulder forward elevation and abduction were
180 degrees, bilaterally. Internal, and external rotation of
the shoulders was 90 degrees. He could scratch his back with
both hands. There was no audible crepitus on articulating
the left shoulder. There was slight tenderness on palpating
the bicipital tendon of the left shoulder. The left shoulder
osseus structures and soft tissues were unremarkable. There
appeared to be normal articular relationship at the
glenohumeral joint. The diagnosis was bicipital tendonitis,
left shoulder.
The veteran was awarded service-connection for bicipital
tendonitis, left shoulder by rating decision of November
1996, and was assigned a non-compensable rating.
Medical treatment records in the file include; appellant’s
service medical records and VA examination records. There
are no medical records in the file to indicate any ongoing
treatment for a left shoulder disorder.
The veteran’s bicipital tendinitis, is rated as
tenosynovitis, which, in turn is rated as degenerative
arthritis. 38 C.F.R. § Part 4 DC 5099-5024-5003. Ratings
are based on limitation of motion as objectively confirmed.
It is noted that the appellant is right handed, so minor
extremity ratings apply. Under the provisions of VA's
Schedule for Rating Disabilities, 38 C.F.R. § 4.71a,
Diagnostic Code 5201, Arm, limitation of motion of, is
evaluated as follows:
To 25 degrees from side warrants a 40 percent (Major), 30
percent (Minor) rating.
Midway between side and shoulder level warrants a 30 percent
(Major), 20 percent (Minor) rating.
At shoulder level warrants a 20 percent (Major), 20 percent
(Minor) rating.
The Board notes the appellant’s complaints of occasional pain
and soreness of his left arm. On examination, the examiner
noted no swelling, or deformity, and did not note any
objective pain or soreness other than at the palpation of the
bicipital tendon. The appellant did not demonstrate any
limitation of motion which would be commensurate with a
compensable rating. In fact, reported motions of forward
elevation and abduction were full. See 38 C.F.R. § 4.71,
Plate I.
While the Board has considered the “positive” evidence
represented by the veteran’s contentions that he has a more
severe level of bicipital tendonitis, left shoulder, the
Board finds the probative value of this unsubstantiated
evidence to be overcome by the more objective “negative”
recent clinical evidence summarized above. In making this
determination, the Board has considered the provisions with
regard to rating disability due to pain under 38 C.F.R. §§
4.40 and the holding in DeLuca v. Brown, 8 Vet. App. 202
(1995). However, there is no evidence of increased functional
loss due to painful use, weakness, excess fatigability,
and/or incoordination of the left shoulder that would justify
a compensable rating. In this regard, the Board notes that
no pain was elicited during the October 1996 VA examination,
and only a slight tenderness was noted on palpating the left
bicipital tendon. There is no other evidence submitted that
the appellant has had functional or occupational interference
due to this disorder. He has apparently had no treatment,
and while he complains of occasional pain and tightness, this
has not been objectively confirmed. There are no reported
findings of muscle atrophy suggesting disuse, and the record
is otherwise negative for objective elements which would
warrant a compensable schedular rating.
38 C.F.R. § 3.321(b)(1) provides that where the disability
picture is so exceptional or unusual that the normal
provisions of the rating schedule would not adequately
compensate the veteran for his service-connected
disabilities, an extraschedular evaluation will be assigned.
However, the record does not reflect frequent
hospitalization, marked interference with employment or other
findings demonstrating that an extraschedular evaluation
under the provisions of 38 C.F.R. § 3.321(b)(1) is warranted.
It is the conclusion of the Board that the identified
limitation, if any, due in part to pain, is adequately
contemplated by the current noncompensable rating. See
38 C.F.R. §§ 4.40, 4.59 The Board finds that the currently
assigned noncompensable disability evaluation is appropriate.
In view of the lack of evidence to establish the presence of
additional impairment to include ankylosis, malunion,
dislocation, or limitation of motion midway between the side
and shoulder level, a compensable evaluation is not
warranted.
Service connection for obstructive airway disease, and chest
and arm pains
The threshold question which must be resolved with regard to
each remaining claim is whether the veteran has presented
evidence that the claim is well grounded; that is, that the
claim is plausible, meritorious on its own, or otherwise
capable of substantiation. If the veteran has not, the
appeal fails as to that claim, and the Board is under no duty
to assist him or her in any further development of that
claim, since such development would be futile. 38 U.S.C.A. §
5107(a) (West 1991 & Supp. 1997); Murphy v. Derwinski, 1 Vet.
App. 78 (1990). Where such evidence is not submitted, the
claim is not well grounded, and the initial burden placed on
the veteran is not met. See Tirpak v. Derwinski, 2 Vet. App.
609 (1992). As discussed below, the Board finds that the
claims of entitlement to service connection for an
obstructive airway disease secondary to asbestos exposure,
and, pain in the chest and arm are not well grounded.
Evidentiary assertions by the veteran must be accepted as
true for the purposes of determining whether a claim is well
grounded, except where the evidentiary assertion is
inherently incredible or is beyond the competence of the
person making the assertion. See King v. Brown, 5 Vet. App.
19 (1993). In this case, the evidentiary assertions as to
the claims of service connection for an obstructive airway
disease secondary to asbestos exposure, and, pain in the
chest and arm are beyond the competence of the veteran when
viewed in the context of the total record.
Under the provisions of 38 U.S.C.A. § 1110 (West 1991 & Supp.
1997), service connection can be granted, in pertinent part,
for “disability resulting from personal injury suffered or
disease contracted in line of duty . . . .” 38 U.S.C.A.
§ 1110 (West 1991 & Supp. 1997); see also 38 U.S.C.A. § 1131.
To establish service connection for a disability, symptoms
during service, or within a reasonable time thereafter, must
be identifiable as manifestations of a chronic disease or
permanent effects of an injury. Further, a present
disability must exist and it must be shown that the present
disability is the same disease or injury, or the result of
disease or injury incurred in or made worse by the
appellant’s military service. 38 C.F.R. § 3.303 (1996);
Rabideau v. Derwinski, 2 Vet. App. 141, (1992).
For the showing of chronic disease in service there are
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
“chronic”. Continuity of symptomatology is required only
where the condition noted during service is not, in fact,
shown to be chronic or where the diagnosis of chronicity may
be legitimately questioned. When the fact of chronicity in
service is not adequately supported, then the showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b) (1996). Service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease occurred in service. 38 C.F.R.
§ 3.303(d) (1996).
The veteran’s service medical records record that the veteran
was exposed to asbestos during his work onboard ship. He had
been seen in service for what was interpreted as a mild
obstructive airways disorder. This appears to have been
acute, and resolved during service. There were no pertinent
abnormalities found at separation or on the post-service VA
examination. The file also contains complaints and treatment
with Naprosyn for chest and left shoulder pains, without
radiation of pain.
There are no post service VA or private medical records
indicating complaints or treatment for an obstructive airway
disease secondary to asbestos exposure, and, pain in the
chest and arm.
In a comprehensive VA examination in October 1996. The
veteran stated that he was exposed to asbestos fibers in
service, but he did not currently complain of shortness of
breath, or chest pains. He also injured his left shoulder
and left anterior chest region in 1992. He claimed that from
time to time the shoulder and musculature of the left upper
chest area became, “real tight.” Furthermore, he had low
back pain since 1987 due to lifting on board ship. He did
not have radiation to the lower extremities.
The examiner noted no cough or expectoration, or tachypnea,
or hyperpnea. The lungs were clear to auscultation and
percussion. A lung capacity examination indicated a normal
spirometry. The chest size was within normal limits, and the
lungs appeared to be clear. No abnormal changes of the
pleura were identified.
An examination of the musculoskeletal system revealed no
joint or bone deformities, no soft tissue swelling or
increased heat around the joints of the limbs. There was no
malalignment of the axial skeleton, and no sulcus sign of the
left shoulder. The left shoulder osseus structures and soft
tissues were unremarkable. There appeared to be normal
articular relationship at the glenohumeral joint.
The diagnoses were low back pain syndrome, by history; and
bicipital tendonitis, left shoulder; and, asbestosis, not
clinically found.
A rating decisions in November 1996 denied service connection
for an obstructive airway disease and, chest and arm pain.
A video hearing was held in September 1997, before a member
of the Board sitting in Washington, DC, and the appellant and
his representative sitting in Atlanta, Georgia. The veteran
testified that his back and chest pains restricted his
activities, but had not caused him to miss time from work.
The back pain flared up approximately 3 to 4 times a month,
with small throbbing muscle spasms. He indicated that he was
short-winded, and expectorated a lot of phlegm every now and
then. Mostly lying down there was phlegm that came up,
breathing problems, as well as chest pains. He admitted
taking a respiratory test in service which failed to reveal
any allergies or obstruction of the airway.
After a review of the evidence of record and the applicable
laws and regulations set forth above, the Board finds that
the veteran does not have chronic obstructive airway disease,
and, chest and arm pain, that can be related to any incident
or injury in service. To the extent that the appellant had
pathology in service, that is not enough. To service connect
a disorder, there must be current findings. The VA
examination results were all negative. None of the evidence
suggests any relationship with an obstructive airway disease,
and, pain in the chest and arm to service. Therefore,
despite his contentions that he has had an obstructive airway
disease secondary to asbestos exposure, and, pain in the
chest and arm related to service, the evidence does not
support those contentions.
Although his statements are probative of symptomatology, they
are not competent or credible evidence of a diagnosis or
medical causation of a disability. See Grottveit v. Brown, 5
Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App.
492, 494-95 (1992); Miller v. Derwinski, 2 Vet. App. 578, 580
(1992). His assertions are not deemed to be credible in
light of the other objective evidence of record. He lacks
the medical expertise to offer an opinion as to the existence
of an obstructive airway disease, and, chest and arm pain
related to service, as well as to medical causation of any
current disability. Id. Moreover, the Board notes there is
no showing that the alleged disorders were treated post
service.
In the absence of competent, credible evidence of continuity
of relevant symptomatology, service connection is not
warranted for an obstructive airway disease secondary to
asbestos exposure, and, chest and arm pain.
Where a claim is not well grounded, it is incomplete, and the
VA is obligated under 38 U.S.C.A. § 5103 to advise the
claimant of the evidence needed to complete his application.
Robinette v. Brown, 8 Vet. App. 69 (1995). In this case, in
the statement of the case, and the supplemental statement of
the case, as well as in other correspondence, the appellant
has been notified of the defects in the evidentiary record,
and the kinds of information needed. As such, it is
concluded he has been appropriately advised as to the
information needed. Furthermore, there is no indication that
there are records in existence that might provide information
as to this claim.
ORDER
An increased (compensable) evaluation for bicipital
tendonitis, left shoulder is denied.
Well grounded claims for service connection for an
obstructive airway disease secondary to asbestos exposure,
and, pain in the chest and arm not having been submitted, the
claims are denied.
REMAND
The appellant also contends that he has a low back disorder
that is related to service. At the personal hearing he
indicated that his medical records at work reflected
knowledge by his employer of this pathology. Those records
should be requested.
In addition, at the time of the VA examination, an x-ray
report of the low back contained the incidental finding that
“[t]here was mild narrowing of the L5-S1 disc space.” It is
not indicated whether this may have been related to the
inservice complaints, may be the cause of reported back pain,
or is a variant of normal and of no significance. In view of
this record, however, and in view of the fact that the
examiner did not have the claims folder, additional
development is needed.
In view of the foregoing, this case is REMANDED for the
following actions:
1. The RO should, with the assistance of
the appellant as indicated, obtain copies
of any medical records from the veteran’s
employer concerning the low back. In
addition, if the appellant has had any
treatment for his low back since the 1996
VA examination, attempts should be made
to obtain copies of those records. To
the extent there is an attempt to obtain
records that is unsuccessful, the claims
folder should contain documentation of
the attempts made. The appellant and his
representative should also be informed of
the negative results. 38 C.F.R. § 3.159.
2. Thereafter, and whether records are
obtained or not, the appellant should be
scheduled for a VA orthopedic examination
of the low back. All indicated tests
should be accomplished and all clinical
findings should be reported in detail.
The claims folder should be provided to
the examiner for review prior to the
examination. After reviewing the claims
folder and examining the veteran, the
examiner should answer the following:
(a) Does the veteran have current low
back pathology?
(b) If so, is the pathology chronic?
(c) If so, can the onset of the
pathology by dated?
(d) What is the significance, if any of
a finding on x-ray of a mild narrowing of
the L5-S1 disc space? Is this a variant
of normal? Would this cause back pain?
Is this likely related to the in-service
complaints and findings?
(e) Is there any current objective
evidence of back pathology that can be
related to the appellant’s service?
When the aforementioned development has been accomplished,
the claim should be reviewed by the RO. In the event the
benefits sought are not granted, the appellant and his
representative should be provided with a supplemental
statement of the case and afforded a reasonable opportunity
to respond thereto. Thereafter, the case should be returned
to the Board, if in order. No action is required of the
appellant until he is notified. The Board intimates no
opinion as to the ultimate outcome in this case by the action
taken herein.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-466, § 302, 108 Stat. 4645, 4658 (1994) and
38 U.S.C.A. § 5105 (West 1991 and Supp. 1996) (Historical and
Statutory Notes). In addition VBA’s ADJUDICATION PROCEDURE
MANUAL, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and by the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402 (1988). The date that appears on the
face of this decision constitutes the date of mailing and the
copy of this decision that you have received is your notice
of the action taken on your appeal by the Board of Veterans’
Appeals. Appellate rights do not attach to those issues
addressed in the remand portion of the Board’s decision,
because a remand is in the nature of a preliminary order and
does not constitute a decision of the Board on the merits of
your appeal. 38 C.F.R. § 20.1100(b) (1996).
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